I have been reading the Court of Appeal (CoA) ruling on the matter between the Botswana Movement for Democracy (BMD) and the Umbrella for Democratic Change (UDC).
It seems to me that the appeal failed purely on the balance of convenience. The BMD miscalculated in taking its time to launch the challenge with the result that the success of its challenge had to hinge on whether it had good grounds for urgency as opposed to whether it had a cognizable case on the merits.
At paragraph 20 of the judgement, the court conducts a balancing exercise between the prejudice that the UDC would suffer if the appeal was to be heard on urgency and that likely to be suffered by the BMD and concludes that greater prejudice would be suffered by the UDC in the resultant confusion that would ensue so close to the elections in the event the BMD were readmitted.
I must say that the reasoning of the court is very convincing. What was before it was a late tackle by the BMD the purpose of which was more to play a spoiler role than to achieve any meaningful political objective.
I am not unmindful of the fact that in his argument, counsel for the BMD indicated that the party was more likely to pull more votes under the umbrella than as a stand-alone entity. But it were some somewhat unfortunate utterances by the party’s vanguard that proved to be self-defeating.
A statement had been made (or so it was alleged) to the effect that the BMD were persisting with the litigation only as a matter of principle and had no intention of ever joining or working with the UDC coalition.
That appears to me, to have played a key role in the Judges’ minds on the issue. They simply could not understand why they had to sit on urgency on a matter that was by description of the very appellants, a fruitless, egotistic legal expedition. Neither, do I.
Clearly, it is important to ensure that those that speak for party are well informed as to the possible legal significance of their utterances and must rely more on the party public relations machinery when it comes to far-reaching public pronouncements. The alleged utterances (same were denied) have proved very costly, in the very end.
Make no mistake about it, there was prejudice to be suffered by the BMD but in my view that was self-inflicted. The challenge was launched rather late. Perhaps it had been a tactical move to ensure that the matter is resolved as closely to the elections as possible in order to effectively upset the applecart.
If it was, it backfired spectacularly. If it wasn’t, it was indeed a grave error of judgement. The lesson to be learnt is that litigation that is made without the
The courts will always try to divine the motives even if they may not ultimately expressly pronounce on the same.
It could well be that in the end, the BMD will emerge triumphant and its expulsion would be ruled unlawful by the Court of Appeal. I have had my own doubts as to the lawfulness of the expulsion but clearly, the matter is sub judice and I am not at liberty to delve further into such.
However, I differ with the Court of Appeal that the BMD have any practicable future recourse. I appreciate, on this score that I may be looking at the matter from a wholly distinct vantage point.
The court opines that the BMD is not an entity with some temporal existence and the BMD would still have an opportunity to negotiate their place within the pact, after the elections. That is problematic because the BMD’s position is not based on negotiating their place within the pact. It is based on its supposed rights having earned such by reason of prior, concluded negotiations.
The supposed remedy therefore puts the BMD in a position where they will firstly have to renegotiate rights already earned, and secondly, to do so on a changed landscape where they have been effectively replaced by the Botswana Congress Party (BCP). The CoA cannot be right on this score.
But as I have said, it’s the BMD that brought it all upon themselves. Their late tackle smacks of malice, if not sour grapes even if they may have had a genuine ground of complaint to begin with, a matter on which the jury is still out.
But it was always going to be problem for the BMD even if they had succeeded. Their leader is nearly totally loathed in the UDC and so are his immediate lieutenants who enthroned him in Bobonong.
The degree of enmity would have required a truth and reconciliation commission. The UDC members would likely have virtually revolted at the idea of new negotiations with a despised group and put the opposition project in jeopardy.
The BCP would likely have exited the pact and the possibility that the UDC could form a government in October would have faded completely. I see no practical opportunity for a kiss and make up post October after the endless tirade of expletives between the respective leaders.
They have no charismatic leaders to resuscitate the project outside the UDC and to give it national appeal. It is over with the BMD.